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Majority sides with hotel in lawsuit stemming from molestation

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A divided Indiana Supreme Court affirmed summary judgment for a hotel, its owner and the hotel franchisor that the hotel’s insurance company had no duty to defend a civil complaint brought by a minor motel guest who was molested by an off-duty employee.

R.H.M. was a guest at the New Castle Holiday Inn Express owned by Anil Megha when employee Michael Forshey entered his locked room at night and molested him. Forshey has been convicted of child molestation. R.H.M.’s mom sued the hotel, the franchisor Holiday Hospitality and Megha, claiming, among other things, battery, negligent retention and supervision, and negligent hiring.

AMCO Insurance Co., which insured the Holiday Inn Express, claimed it owed no coverage for any liability from the complaint and it had no duty to defend any of the defendants. Holiday Hospitality and Megha were listed as additional insureds. The policy expressly disclaimed coverage for acts of molestation or abuse by excluding any bodily injury or personal or advertising injury arising from the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of the insured.”

The trial court ruled in favor of the defendants, but the Indiana Court of Appeals reversed, finding a genuine issue of material fact as to whether R.H.M. was in the care, custody or control of the hotel at the time of the molestation.

In Holiday Hospitality Franchising, Inc. v. AMCO Insurance Company, 33S01-1206-CT-312, Justice Steven David, writing for the majority, affirmed summary judgment for the insurance company. Focusing on the “care, custody or control” portion of the policy and using those terms’ definitions from Webster’s Dictionary, David and Justices Mark Massa and Loretta Rush found the child was not in the custody or control of the hotel, but he was in the care of the hotel at the time of the molestation.

“Simply put, we believe these facts reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract,” David wrote.  
 
Chief Justice Brent Dickson concurred in a separate opinion, believing the proper understanding of “care” is established by Indiana law that a hotel guest is considered a business invitee and is entitled to a reasonable duty of care. In this case, “care” exists as a matter of law, so the exclusion applies.

Justice Robert Rucker dissented, believing it should be up to the trier of fact as to whether R.H.M. was under the control or care of the hotel.

 

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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